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Friday, 27 November 2009

From the IPKat's much valued friend and scholar Dirk Visser (Klos Morel Vos & Schaap; Professor of Intellectual Property Law at Leiden University) comes news of last week's decision of the Hoge Raad -- the Dutch Supreme Court -- in Case LJN BJ6999, Lego Nederland B.V. c.s v Mega Brands Inc c.s. In this decision the court upheld the decision by the Court of Appeal of ’s-Hertogenbosch that the 'fit-alike' building blocks manufactured by Mega Brands are not slavish imitation of Lego bricks.

According to the courts, there is a need for standardisation (compatiblility and interchangeability) which in this instance justified the imitation. There is however a caveat: the lawful imitator is still under an obligation to avoid confusion as much as possible. The use of other colours and the application of a trade mark other than LEGO are however enough to avoid confusion in this case.

The IPKat says thanks to Dirk and wonders how long some countries will be allowed to keep their 'slavish imitation' remedies in the wake of increasing pressure to ensure that the same activities -- in the absence of specific and identifiable IP rights -- are either permitted or prohibited across all 27 European Union Member States. Merpel says, building with these little bricks is great fun, but have you ever tried pulling them apart again when all you've got are paws?

You can read the entire judgment in the original Dutch here, or lovingly translated into English here.

1 comment:

Anonymous
said...

I noticed a small error in the English translation. The last sentence of point 3.5.2 should read "Decided ..." (in the judgment of 30 October 1998 it was decided that ...) instead of "Decisive is". The Dutch text has "Beslist", not "Beslissend".

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